Giving preference to male child is against constitutional duty to renounce practices derogatory to women's dignity

Federation of Obstetrics and Gynecological Societies of India Vs Union of India and others

Supreme Court

03/05/2019

WRIT PETITION (CIVIL) NO.129 OF 2017

About/from the judgment:

"Nothing can be more sinister, immoral and anti-­social act [than] allowing female foeticide."

 

The Supreme Court observed that giving preference to male child is violative of Article 39A of the constitution and against mandate of Article 51A (e) which casts a Constitutional duty on citizens to renounce practices derogatory to the dignity of women.

 

While upholding the constitutional validity of Section 23 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the court observed that that female foeticide is most inhumane,immoral and anti-social act.

 

The court said that PCPNDT Act is a social welfare legislation, which was conceived in light of the skewed sex­-ratio of India and to avoid the consequences of the same. In this context, the bench observed:

"The mischief sought to be remedied is grave and the effort is being made to meet the challenge to prevent the birth of the girl child. Whether Society should give preference to male child is a matter of grave concern. The same is violative of Article 39A and ignores the mandate of Article 51A(e) which casts a duty on citizens to renounce practices derogatory to the dignity of women."

 

The court also observed that skewed sex-ratio is likely to lead to greater incidences of violence against women and increase in practices of trafficking, 'bride-buying' etc. The rigorous implementation of the Act is an edifice on which rests the task of saving the girl child, the court said.

 

Reversed Burden Of Proof In Gender Justice Legislation

 

Another important observation made by the bench in this judgment is that there can be a legislative provision for imposing burden of proof in reverse order relating to gender justice. The bench cited examples of such reversed burden of proof in some statutes. It mentioned Sections 29 and 30 of the Protection of Children from Sexual Offences (POCSO) Act and also Sections 113­A, 113­B and 114A of the Indian Evidence Act.

 

"These provisions are a clear indication of the seriousness with which crimes against women and children have been viewed by the Legislature. It is also evident from these provisions that due to the pervasive nature of these crimes, the Legislature has deemed it fit to employ a reversed burden of proof in these cases. The presumption in the proviso to Section 4(3) of the Act has to be viewed in this light."

 

The Proviso to Section 4(3) was challenged on the ground that it imposes reversed burden of proof. The said proviso makes it mandatory that person conducting ultrasonography on a pregnant woman shall keep complete record as may be prescribed and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of Section 5 or Section 6 unless contrary is proved by the person conducting such ultrasonography.

Read the Judgment

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